Re A (A Child) (Order: restriction on applications)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lady Justice Smith |
| Judgment Date | 14 December 2009 |
| Neutral Citation | [2009] EWCA Civ 1548 |
| Docket Number | Case No: B4/2009/2360 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2009 |
[2009] EWCA Civ 1548
IN THE SENIOR COURTS OF ENGLAND AND WALES
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NOTTINGHAM COUNTY COURT
(Her Honour Judge Butler Qc)
Before: Lady Justice Smith
and
Lord Justice Wilson
Case No: B4/2009/2360
LOWER COURT NO: NG09P01193
The Appellant Father appeared in person assisted by his McKenzie Friend , Mr Ian Julian.
Miss Maria Mulrennan (instructed by Rothera Dowson) appeared on behalf of the Respondent Mother.
Lord Justice Wilson:
A father, assisted (indeed very greatly assisted) by Mr Julian, his McKenzie friend, applies for permission to appeal against orders made under the Children Act 1989 (“the Act”) by HHJ Butler QC in the Nottingham County Court on 28 September 2009. Wall LJ directed that the application be heard on notice to the mother and on the basis that, were permission granted, the substantive appeal would follow forthwith.
The child at the centre of the proceedings is a boy, K, who was born on 6 May 2005 and who is thus now aged four years and seven months. The parents were never married but the father's name was entered on his birth certificate with the result that the father now shares parental responsibility for him with the mother. K lives with the mother, her partner and her teenage daughter by a previous relationship near Nottingham. But at all material times K has had substantial contact with the father, who lives with his wife and her children near Derby.
Much of the judge's order dated 28 September 2009, made during a brief hearing at which both parties were represented by solicitors, reflected consensual arrangements for the father's contact with K, being indeed arrangements largely based on the provisions of an order made between the parties by the family proceedings court in Nottingham on 13 August 2008. The arrangements for contact made by the judge were that the father should have contact with K on alternate weekends from Friday evenings to Sunday evenings; each Monday from 3pm to 6.30pm even during school holidays; for two additional nights in each of the three half-terms; from 6pm on Christmas Eve to 6pm on Christmas Day this year (2009) and (I infer) in alternate years thereafter and from 6pm on Christmas Day to 6pm on Boxing Day next year (2010) and (I infer) in alternate years thereafter; from 6pm on New Year's Day to 6pm on 2 January beginning in this imminent new year 2010 and (I infer) in alternate years thereafter and from 6pm on New Year's Eve to 6pm on New Years Day next year (2010/11) and (I infer) in alternate years thereafter; for part of K's birthday on 6 May each year; for one week during the Easter school holidays; and for two separate weeks during each summer school holidays.
There are, however, three aspects of the judge's order dated 28 September 2009 to which the father objects.
The first is the residence order which the judge invested in the mother. We have a transcript of the entire proceedings before the judge on 28 September and it shows how short and summary they were. It is clear from the transcript that at a late stage the solicitor representing the father objected to the investment in the mother of a residence order on the basis that it would not be better for K to make that order than to make no residence order at all and thus that, by virtue of s.1(5) of the Act, the judge should not make it. The judge overruled that objection.
The second relates to two provisions of the contact order. The transcript displays only a complaint by the father's solicitor that the mother had not agreed to attempt in 2010 a renegotiation, leading (as the father no doubt hoped) to an enlargement, of his contact with K. The judge inevitably commented that such was beyond her power to order. The father tells us, however, that there was a particular proposal relating to the arrangements for his contact this coming Christmas about which he was not in agreement. In that the arrangements proposed by the mother and adopted by the judge provided for the father to have contact with K from 6pm on Christmas Eve to 6pm on Christmas Day and immediately thereafter, without a break, for him to have his regular alternate weekend contact with K, which happens to fall from 6pm on Christmas Day (being a Friday) to 6pm on Sunday 27 December, one might think that the arrangements for Christmas contact were far from unfavourable to the father. Apparently, however, the father's family has arranged a substantial party on Monday 28 December to mark the golden wedding anniversary of K's paternal grandparents, with the result that the father would have preferred K to attend the party with him and with the result that, for example, he had offered to the mother that, instead of his returning K to her at 6pm on Sunday 27 December, he would do so at 6pm on Saturday 26 December and be compensated for that day forgone by having further contact with him from 10am on 28 December until 10am on 29 December so that they could attend the party together. The father also tells us of his sense of grievance that certain provisions of the order of the family proceedings court to which I have referred, by which he was to have additional contact with K, were not replicated in the order dated 28 September 2009. Albeit not in very clear terms, the magistrates had provided for K to stay overnight with the father on additional occasions for the purpose of “special family events” and the father's complaint is that the failure of the order dated 28 September to repeat that provision has unfairly resulted in a loss of contact on his part with K.
The third is an order under s.91(14) of the Act barring the making of further applications without leave. It reads only that “there be a s.91(14) order for a period of 18 months from the date of this order”.
The relevant history, briefly stated, begins with the separation of the parents in May 2007. On the face of it the mother has always been amenable to the father's enjoyment of substantial contact with K. The basic charge levelled by the father against her is, however, that, underneath a veneer of cooperation, the mother has consistently been obstructive in relation to the detail of contact arrangements. The basic charge levelled by the mother against the father, by contrast, is that he has never remained content with whatever she has offered or has been agreed or indeed has been ordered and has been so persistent in his demands for increases in contact as in effect thereby to have harassed and beleaguered her. Although, at the short hearing on 28 September 2009, the judge purported to uphold the mother's basic charge, which had been briefly hinted at in a Case Summary placed before her on behalf of the mother but not adverted to orally by her solicitor, the judge heard no evidence and could not properly have reached any conclusion about the validity either of the mother's basic charge against the father or, for that matter, of the father's basic charge against the mother. As I will show, the judge's view represented no more than her instinct and, although it is of course possible that her instinct was well- directed, such is not the basis upon which judicial decisions may be cast.
In the months following the separation the father enjoyed substantial contact with K, then aged only two, on a consensual basis. But difficulties arose and in March 2008 in the county court he issued an application for a contact order. A district judge transferred it to the family proceedings court which, on 13 August 2008, made the detailed order for contact to which I have referred. The father was dissatisfied with aspects of the magistrates' order and filed an appeal to the county court. At that time, however, appeals from the family proceedings court lay to the High Court, Family Division. In April 2009 the outstanding appeal, unfortunately left in limbo, was in effect overtaken by an application on the part of the mother to the family proceedings court for a residence order in respect of K and for a variation of its contact order. The...
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